Oregon Guard suit against KBR on exposure to hexavalent chromium will move forward

Magistrate Judge Paul Papak will hear arguments July 12 on whether an Oregon Army National Guard veterans' case against military contractor Kellogg, Brown and Root should go forward in U. S. District Court in Oregon.

On Thursday, Papak also granted in part and denied in part KBR's motion to temporarily stop discovery until that he rules on the KBR's second motion to dismiss the case. Papak directed the opposing attorneys to work together until then to identify witnesses and documents needed to proceed.

Twenty-one current and former Guard soldiers sued the contractor claiming that KBR managers downplayed or failed to disclose the dangers of a cancer-causing chemical scattered across Qarmat Ali water treatment plant in the months after the invasion of Iraq. The Guard was assigned to protect KBR employees as they worked to restore Iraqi oil production. The men say they suffer health problems as a result.

Thursday's hearing underscored the case's national scope and complexity. Four attorneys, appearing in person and by phone to defend KBR, referred to similar cases filed against the contractor by National Guard soldiers in West Virginia and Indiana. (The Indiana National Guard case was dismissed in February and refiled in Houston.)

KBR's attorney Jeffrey Eden, of Portland, said sufficient information has already been gathered, including more than 20,000 pages of documents and the depositions of 14 current and former KBR employees.

But Judge Papak said he didn't know how much discovery was fair to both sides. He was also concerned about delays noting that KBR attorneys appeared to have had the latest motions "in the quiver" and filed them two weeks after the judge rejected their first motion to dismiss on April 9.

"We got the motion ready as fast as we could," said Ray Biagini, KBR defense attorney from Washington, D.C. Biagini said getting information from the Army was slowed by regulations. He also argued there is already enough known to show actions were based on the military's wartime decisions in conjunction with the British and Iraqis.

Papak said he would have to hear both sides take on such information first.

David Sugerman, one of two attorneys appearing for the Oregon Guard, said the Army took 13 months to respond to his Freedom of Information Acts requests for documents, and then only after going Sen. Jeff Merkley, D-Ore., got involved. Yet, he said, KBR has gotten "many more documents" than the veterans.

Papak said he would help both sides agree on what other documents and witnesses they needed to proceed.

Meanwhile, on Thursday, KBR challenged The Oregonian's May 20 story (based on 20 Senate committee oversight hearings and federal reports) said it had become "synonymous with poor performance, serving spoiled food, using contaminated water and burning trash in pits."

Mark S. Williams, president of KBR Infrastructure, Government and Power, wrote: "The U.S. military has consistently and officially given KBR's work good to excellent ratings for our work that includes food water and trash service.

"Based in part on KBR's track record of high-quality performance, the U.S. military earlier this month notified KBR that it will continue to provide life support services to U.S. bases in Iraq under the current contract."

He went on to say that KBR had served more than 1 billion meals, delivered 440 million pounds of mail and driven more than 701 million miles transporting supplies and equipment for the military.